PRODUCT LICENSE AND SERVICE AGREEMENT (the “Agreement”)
You agree that your use of this Tourette Association of America website, application (“App”), account, product, service or other property (including Service and/or Service Provided Content as defined below), including any patches, updates, and downloadable content associated with any App or other software (collectively “Product” or “Products”), shall be subject to the terms of this Agreement.
All rights not expressly granted to you are reserved by Tourette Association of America and its licensors.
A. In order to use certain Products you may be required to:
meet minimum age requirements – see Sections 1 and 10
agree to Third Party Terms – see Section 15
open an account operated and provided by Tourette Association of America – see Section 10
2. ACCESS AND COSTS
You acknowledge and agree that you will provide at your own cost and expense the equipment, Internet or other connection charges, required to access and use the Product. Tourette Association of America makes no warranty that the Product can be accessed on all personal computers, games consoles, smartphones, tablets or other devices (each, a “Device”, or in the plural, “Devices”), by means of any specific Internet or other connection provider, or in all countries.
YOU ARE SOLELY RESPONSIBLE FOR ANY THIRD PARTY COSTS YOU INCUR TO USE THE PRODUCT.
A. Tourette Association of America grants you a personal, limited, non-exclusive license to use the Product for your non-commercial use. To the fullest extent permitted by applicable law, this license granted to use the Product is non-transferable. You may not rent, lease, lend, sell, redistribute or sublicense the Product. You may not copy (except as expressly permitted by this license and any other applicable terms, conditions, or usage rules), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Product, any updates, or any part thereof (except as and only to the extent allowed by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the licensed application). You may not remove or alter Tourette Association of America’s or its licensors trademarks or logos, or legal notices included in the Product or related assets. Any attempt to use the Product in breach of the terms of this Agreement is a violation of the rights of Tourette Association of America and its licensors. The terms of this Agreement will govern any upgrades provided by Tourette Association of America that replace and/or supplement the Product, unless such upgrade is accompanied by a separate (and/or updated) agreement in which case the terms of that agreement will govern.
B. If the Product is an App then unless expressly authorized by Tourette Association of America in writing installation and use is restricted to an authorized Device; and you are prohibited from making a copy of the App available on a network where it could be used or downloaded by multiple users.
C. The license rights granted to you herein are also subject to the limitations set forth below. Any use of the Product in violation of these limitations is a material breach of the Agreement, subjects you to immediate revocation of your license, and will be regarded as an infringement of Tourette Association of America’s copyrights and other rights in and to the Product. You agree that you will not, under any circumstances:
i. use, develop, host or distribute cheats, automation software (bots), modded lobbies, hacks, mods or any other unauthorized third-party software in connection with the Product, or engage in any form of cheating, boosting, or booting;
ii. exploit or reverse engineer the Product (or any of its parts), for any commercial purpose, including without limitation (a) to enable use at a cyber cafe, computer gaming center or any other location-based site without the express written consent of Tourette Association of America; (b) for gathering in-game currency, items or resources for sale outside the Product; (c) performing in-game services in exchange for payment outside the Product, e.g., power-leveling; or (d) the sale of accounts, log-in information, or other Product materials, access, or rights;
iii. use any unauthorized third-party software that intercepts, “mines”, or otherwise collects information from or through the Product;
iv. except as authorized by Tourette Association of America in writing, host, provide or develop matchmaking services for the Product, or intercept, emulate or redirect the communication protocols used by Tourette Association of America in any way, for any purpose, including without limitation unauthorized play over the internet, network play, or as part of content aggregation networks;
v. facilitate, create or maintain any unauthorized connection to the Product, including without limitation (a) any connection to any unauthorized server that emulates, or attempts to emulate, the Product; and (b) any connection using programs or tools not expressly approved by Tourette Association of America in writing;
vi. Violate any applicable law or regulation in connection with your use of Product;
vii. Disrupt or assist in the disruption of: (i) any computer, device or server used to support the Product; or (ii) any other player’s use of a Product;
viii. interfere or attempt to interfere with the operation of the Product in any way through any means or device including, but not limited to, launching a denial of service attack, spamming, hacking, or uploading computer viruses or time bombs; or
ix. Reproduce, distribute, display, transfer or use any part of the Product except as expressly authorized by Tourette Association of America; or
4. BINDING ARBITRATION AND CLASS ACTION WAIVER
READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
These BINDING ARBITRATION AND CLASS ACTION WAIVER provisions apply to you if you are domiciled in and/or acquired and use the Product in the United States. These provisions may also apply to you if you are domiciled in and/or acquired and use the Product from outside the United States. See JURISDICTION AND APPLICABLE LAW below for details.
Initial Dispute Resolution: Tourette Association of America’s Customer Support department is available by emailing firstname.lastname@example.org to address any concerns you may have regarding the Product. Most concerns are quickly resolved in this manner to our customers’ satisfaction. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
Binding Arbitration: If the parties do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution is pursued pursuant to the paragraph above, then either party may initiate binding arbitration as the sole means to formally resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to this Agreement (including its interpretation, formation, performance and breach), the parties’ relationship with each other and/or your use of the Product shall be finally settled by binding arbitration administered by JAMS in accordance with the provisions of its Comprehensive Arbitration Rules or Streamlined Arbitrations Rules, as appropriate, excluding any rules or procedures governing or permitting class actions. This arbitration provision is made pursuant to a transaction involving interstate commerce, and the Federal Arbitration Act (the “FAA”) shall apply to the interpretation, applicability, enforceability and formation of this Agreement notwithstanding any other choice of law provision contained in this Agreement. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including without limitation any claim that all or any part of this Agreement is void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
The JAMS Rules governing the arbitration may be accessed at http://www.jamsadr.com/ or by calling JAMS at (800) 352-5267. Your arbitration fees and your share of arbitrator compensation shall be governed by the JAMS Comprehensive Arbitration Rules, but shall not incorporate the JAMS Class Action Procedures, and, to the extent applicable, the Consumer Minimum Standards, including the then-current limit on arbitration filing fees. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Tourette Association of America will pay the additional cost. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
Location: If you are a resident of the United States, arbitration will take place at any reasonable location within the United States convenient for you. For residents outside the United States, arbitration shall be initiated in Los Angeles County, California, and you and Tourette Association of America agree to submit to the personal jurisdiction of any federal or state court in Los Angeles County, California, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Class Action Waiver: The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND Tourette Association of America AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception – Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court that only asserts claims for patent infringement or invalidity, copyright infringement, moral rights violations, trademark infringement, and/or trade secret misappropriation, but not, for clarity, claims related to the license granted to you for the Product under this Agreement. Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
30 Day Right to Opt Out: You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in the “Binding Arbitration”, “Location”, and “Class Action Waiver” paragraphs above by sending written notice of your decision to opt-out to the following address: Tourette Association of America Publishing, Inc., 3100 Ocean Park Boulevard, Santa Monica, CA 90405-3032, Attn: Legal. The notice must be sent within 30 days of purchasing the Product (or if no purchase was made, then within 30 days of the date on which you first access or use the Product and agree to these terms); otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, Tourette Association of America also will not be bound by them.
Changes to this Section: Tourette Association of America will provide 60-days’ notice of any changes to this Section. Changes will become effective on the 60th day and will apply prospectively only to any claims arising after the 60th day.
5. JURISDICTION AND APPLICABLE LAW
The Product is made available subject to the terms of this Agreement. If you acquired and use the Product from:
A. For residents in the United States, Mexico or Canada, then you are contracting with Tourette Association of America (42-40 Bell Boulevard # 205, Bayside, NY 11361) and any claims arising out of this Agreement (including interpretation, claims for breach, and all other claims (including consumer protection, unfair competition, and tort claims)) will be subject to the laws of the State of New York, without reference to conflict of laws principles. If any court or arbitrator determines that the “Class Action Waiver” paragraph set forth above is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then any and all claims arising out of this Agreement (including interpretation, claims for breach, and all other claims (including consumer protection, unfair competition, and tort claims)) shall be decided under the laws of the state where you were a citizen at the time you obtained or bought the Product that was subject to this Agreement. In addition, you and we irrevocably consent to the exclusive jurisdiction and venue of state or federal courts in Los Angeles County, California to resolve any claims that are subject to exceptions to the arbitration agreement described in BINDING ARBITRATION AND CLASS ACTION WAIVER above, or otherwise determined not to be arbitrable.
B. For residents in the European Union, then you are contracting with Tourette Association of America information and foreign address if applicable and the laws of New York State govern the interpretation of this Agreement and apply to claims for breach of it, without reference to conflict of laws principles. All other claims, including claims regarding consumer protection laws, unfair competition laws, and in tort, will be subject to the laws of the European Union country (e.g., the United Kingdom, the French Republic, or the Federal Republic of Germany) in which you acquired and use the Product. In addition, with respect to jurisdiction, you may choose either the courts of the country (e.g., the United Kingdom, the French Republic, or the Federal Republic of Germany) in which you acquired and use the Product, or in the alternative the courts of England and Wales or other court as applicable under the Brussels Regulation EC 44/2001.
C. For residents in Australia or Japan, then you are contracting with Tourette Association of America address here if applicable and the laws of Australia govern the interpretation of this Agreement and apply to claims for breach of it, without reference to conflict of laws principles. All other claims, including claims regarding consumer protection laws, unfair competition laws, and in tort, will be subject to the laws of the country in which you acquired and use the Product (being either Australia or Japan). To the extent permitted by applicable law, you agree to the jurisdiction of the courts of New South Wales, Australia.
D. For residents in the Rest of the World, If you acquired and use this Product from countries other than those listed in sections A, B and C above, then you do so on your own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable, and you expressly indemnify and hold harmless Tourette Association of America from any and all claims, loss, injury, damage, or costs arising from your use of the Product to the extent permitted by applicable law. No warranty or representation is made by Tourette Association of America that the Product or any use of the Product outside of the countries listed in sections A, B and C above complies with any applicable local law. Further your use of the Product and all claims arising out of or related to the Product or this Agreement will, to the extent permitted under applicable law, be subject to the laws of England and Wales, without reference to conflict of laws principles and you consent to the jurisdiction of the courts of England and Wales.
To the fullest extent permitted by applicable law, if any user outside of the United States is entitled to commence and/or participate in legal proceedings within the United States, then that user agrees to be bound by the BINDING ARBITRATION AND CLASS ACTION WAIVER provisions above.
7. USE OF DATA
8. USER GENERATED CONTENT
A. The Product may include message boards, content sharing features, and other means by which you and other users may share content that you create (“UGC”). To the fullest extent permitted by applicable law, by submitting any UGC (including without limitation, images, videos, customer service submissions, idea submissions, suggestions and message postings) you automatically grant (or represent and warrant that the owner of such rights has expressly granted) Tourette Association of America a perpetual, worldwide, royalty-free, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, sub-license, create derivative works from and distribute such UGC or incorporate such UGC content into any form, medium, or technology now known or later developed throughout the universe, and agree that Tourette Association of America shall be entitled to unrestricted use of the UGC for any purpose whatsoever, commercial or otherwise, without compensation, notice or attribution. You waive and agree not to assert any moral or similar rights you may have in any of your UGC.
B. To the extent the Product permits other users to access and use your UGC, you also grant all other users of the Product the right to use, copy, modify, display, perform, create derivative works from, and otherwise communicate and distribute your UGC on or through the Product without further notice, attribution or compensation to you.
C. You represent and warrant that any UGC you provide (i) does not and will not violate any third party intellectual property rights and/or any other person’s rights, including, without limitation, any privacy rights and/or so-called “moral rights”; and (ii) its use as contemplated herein does not and will not require the payment of any royalty or any consideration to a third party. You may not upload or post any UGC that infringes the copyright, trademark or other intellectual property rights of a third party nor may you upload any UGC that violates any third party’s right of privacy or right of publicity, or may require the payment of a royalty or other consideration to a third party. You are responsible and liable for any UGC you place on or through the Product, including the transmission, posting, or other provision of text, files, links, software, photographs, video, sound, music or other information or material. You may only upload your own UGC to the Product; do not upload anyone else’s UGC.
D. Tourette Association of America has no obligation to monitor, approve, verify, or prescreen any UGC that you and other users may contribute to or through the Product. Tourette Association of America reserves the right (but has no obligation) to remove, block, edit, move or disable UGC for any reason in Tourette Association of America ‘s sole discretion. To the maximum extent permitted by applicable law, Tourette Association of America does not assume any responsibility or liability for your UGC or that of other users, or for any failure to monitor, edit, or remove UGC. You agree that you shall not hold Tourette Association of America liable for any loss or damage arising from the contents of any UGC (yours or another user’s) including without limitation in respect of any defamation, harassment, or false endorsement claims.
E. Listed below are some, though not all, violations that may result in Tourette Association of America terminating or suspending your access to the Product and/or restricting your ability to access and/or post UGC. You agree not to do any of the following actions while using the Product:
i. Harass, threaten, embarrass or cause distress or discomfort upon another participant, user, or other individual or entity;
ii. Transmit any UGC that Tourette Association of America considers to be disruptive, unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, hateful, or racially, sexually, ethnically or otherwise objectionable;
iii. Impersonate any person or entity, including but not limited to Tourette Association of America;
iv. Disrupt normal Product functionality, or otherwise act in a manner that negatively affects other participants and/or the overall Product experience;
v. Post or transmit any unsolicited advertising, promotional materials, or any other forms of solicitation;
vi. Intentionally or unintentionally violate any applicable law, regulation or treaty while using or accessing the Product;
vii. Post multiple posts of the same content (e.g., “spam”); or
viii. Invade the privacy or violate or infringe any right of any person or entity, including, without limitation, any intellectual property right.
F. Tourette Association of America DOES NOT ENDORSE, OR GUARANTEE THE ACCURACY, EFFICACY OR VERACITY OF, ANY UGC GENERATED BY USERS.
G. Some Products may permit you to share certain information about yourself with the public, including people who may not be registered users of the Product, and the public may access and use that information and associate it with you. You acknowledge and confirm that you have no expectation of privacy when using such Product features, including without limitation, uploading or submitting UGC; comparing your statistics, personal bests and leaderboards against other users; searching for other users by username; discovering events that other users have signed up for, and linking to social media accounts that publicly display user information. See Section 10.E below for further details.
9. COPYRIGHT NOTICE
A. Tourette Association of America respects the intellectual property rights of others and expects its players and the users of its services to do the same. If you believe that any content appearing in the Product and/or UGC has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent named below.
B. Please be aware that to be effective, your copyright infringement notification must comply with the Digital Millennium Copyright Act (“DMCA”). You are encouraged to review 17 U.S.C. Â§ 512(c)(3) of the DMCA or consult with an attorney prior to sending a notice hereunder.
C. To file a copyright infringement notice, you will need to send a written communication that includes the following to the address listed below:
A. Your name, address, telephone number, and email address;
B. A description of the copyrighted work that you claim has been infringed;
C. The exact URL or a description of where the alleged infringing material is located;
D. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
E. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
F. A statement by you, under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Tourette Association of America
Address: 42-40 Bell Boulevard # 205, Bayside, NY 11361
Attn: Tourette Association of America
Fax: (718) 279-9596
D. Please note that the DMCA provides that you may be liable for damages (including costs and attorney fees) if you knowingly misrepresent that material or activity is infringing. Please also note that the information provided in your copyright infringement notice may be provided to the person responsible for the allegedly infringing material.
10. Tourette Association of America ACCOUNTS
YOU ARE RESPONSIBLE FOR ALL ACTIVITY ON YOUR ACCOUNT. YOU SHOULD NOT REVEAL YOUR ACCOUNT PASSWORD TO OTHERS.
You affirm that you are at least the age specified in any applicable age rating or restriction specified for the Product, and are fully able and competent to enter into the terms, conditions, obligations, representations and responsibilities set forth in this Agreement, and to abide and comply with this Agreement.
C. PARENTS AND GUARDIANS
You agree that you will be responsible for all uses of the account by your child whether or not such uses were authorized by you. Nothing herein limits Tourette Association of America’s rights to suspend, terminate or delete any account.
D. ACCOUNT SUSPENSION/TERMINATION
Tourette Association of America MAY SUSPEND, TERMINATE, MODIFY, OR DELETE ANY ACCOUNT AT ANY TIME FOR ANY REASON OR FOR NO REASON, WITH OR WITHOUT NOTICE TO YOU, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. For purposes of explanation and not limitation, many account suspensions, terminations and/or deletions may be the result of violations of this Agreement.
E. SOCIAL MEDIA
F. USERNAMES AND GROUP DESIGNATIONS:
Depending on which Product and platform or Devise you are using, your username on the platform may be your username in the Tourette Association of America account. Additionally, some Tourette Association of America accounts may allow users to form different “clans”, “squads”, “teams”, or other groups (collectively “groups”) with unique group names. When you choose a username or a group name, or otherwise create a label that can be seen by other users, you must abide by the following guidelines as well as the rules of common decency. If Tourette Association of America finds such a name to be offensive or improper, it may, in its sole and absolute discretion, change or remove the name, and/or suspend or terminate your use of the service. In particular, you may not use any name:
i. Belonging to another person with the intent to impersonate that person, including without limitation any Product administrators or any other employee or agent of Tourette Association of America;
ii. That incorporates vulgar language or which is otherwise offensive, defamatory, obscene, hateful, or racially, sexually, ethnically or otherwise objectionable;
iii. That is subject to the rights of any other person or entity without written authorization from that person or entity;
iv. That belongs or refers to a popular culture figure, celebrity, media personality, icon or persona;
v. That is, contains, or is substantially similar to a trademark or service mark, whether registered or not;
vi. Belonging to any religious figure or deity; or
vii. Related to drugs, sex, alcohol, or criminal activity.
You may not use a misspelling or an alternative spelling to circumvent the name restrictions listed above, nor can you have a “first” and “last” name that, when combined, violate the above name restrictions.
To the fullest extent permitted by applicable law, you are responsible for all use of your account. You must notify Tourette Association of America immediately of any unauthorized use of your username, password, account information, or any other breach of security that you become aware of relating to your Account. Such notification should be made via the Customer Support web page at weblink.
11. SERVICE PROVIDED CONTENT
B. Tourette Association of America does not recognize the transfer of accounts or Service Provided Content. You may not purchase, sell, resell, lend, rent, gift, trade or otherwise transfer any account or Service Provided Content, or offer to purchase, sell, resell, lend, rent, gift, trade or otherwise transfer any Product account or materials, and any such attempt shall be null and void.
C. Upon termination of any Account, the Agreement, or license, you acknowledge and agree that, to the fullest extent permitted by applicable law, you shall retain no access or control over any aspect thereof.
12. CONSENT TO MONITOR
A. Communications made using a Product should not be considered private. Tourette Association of America may monitor and/or record your communications (including without limitation chat text) when you are using a Product, and you hereby provide your irrevocable, express consent to such monitoring and recording. You acknowledge and agree that you have no expectation of privacy concerning the transmission of any UGC or communications, including without limitation chat text or voice communications. Because voice chat and other communications may be viewed and/or heard by other users, users should avoid revealing any personally identifiable information.
If you have a complaint regarding the Product or desire further information on use of a Product, visit Tourette Association of America ‘s Customer Support web pages at weblink.
The license granted under this Agreement is effective until terminated by you or Tourette Association of America. Your rights under this Agreement will terminate automatically without notice from Tourette Association of America if you fail to comply with any term(s) of this Agreement or applicable Third Party Terms. Upon termination of the license, you shall cease all use of the Product, and destroy all copies, full or partial, of the Product.
Tourette Association of America reserves the right to terminate this Agreement without cause on immediate written notice.
15. THIRD PARTIES
The Product may enable, or require, access to other third party materials, services or web sites (“Third Party Materials”). Use of Third Party Materials may require additional terms of service.
You understand that by using any Third Party Materials you may encounter content that may be deemed offensive, indecent, or objectionable. You agree (i) to use Third Party Materials at your sole risk; (ii) that Tourette Association of America shall not have any liability to you for Third Party Materials; (iii) Tourette Association of America is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials. Third Party Materials are provided solely as a convenience to you.
Applicable third parties (such as your console account, mobile phone, or internet access account provider) may also impose limits on the use of or access to certain Products, in any case and without notice or liability. You agree that Tourette Association of America shall not be liable for any acts or omissions of such third parties.
16. WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY
A. WARRANTY DISCLAIMER.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCT IS PROVIDED “AS IS” AND Tourette Association of America DOES NOT WARRANT THAT THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE PRODUCT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ALL OF THE PRODUCT CONTENT WILL BE ACCURATE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, Tourette Association of America EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE, AND NON-INFRINGEMENT.
AUSTRALIA: YOU HAVE CERTAIN STATUTORY GUARANTEES UNDER AUSTRALIAN CONSUMER LAW AND NOTHING IN THE AGREEMENT IS INTENDED TO AFFECT THOSE RIGHTS. PRODUCTS THAT YOU HAVE PURCHASED COME WITH GUARANTEES THAT CANNOT BE EXCLUDED UNDER AUSTRALIAN CONSUMER LAW: YOU ARE ENTITLED TO A REFUND FOR A MAJOR FAILURE AND COMPENSATION FOR ANY OTHER REASONABLY FORESEEABLE LOSS OR DAMAGE: YOU ARE ALSO ENTITLED TO HAVE GOODS REPAIRED OR REPLACED IF GOODS FAIL TO BE OF ACCEPTABLE QUALITY AND THE FAILURE DOES NOT AMOUNT TO A MAJOR FAILURE.
B. LIMITATION OF LIABILITY.
i. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER Tourette Association of America NOR ITS PARENT, SUBSIDIARIES, LICENSORS OR AFFILIATES SHALL BE LIABLE IN ANY WAY FOR DAMAGE OR LOSS OF ANY KIND RESULTING FROM (A) THE USE OF OR INABILITY TO USE THE PRODUCT INCLUDING WITHOUT LIMITATION LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION; (B) THE LOSS OR DAMAGE TO CHARACTERS, ACCOUNTS, STATISTICS, INVENTORIES, VIRTUAL GOODS, OR USER PROFILE INFORMATION; OR (C) INTERRUPTIONS OF SERVICE INCLUDING WITHOUT LIMITATION ISP DISRUPTIONS, SOFTWARE OR HARDWARE FAILURES, FAILURES OF ANY THIRD PARTY BILLING SOLUTIONS OR OTHER SERVICES, OR ANY OTHER EVENT WHICH MAY RESULT IN A LOSS OF DATA OR DISRUPTION OF SERVICE. IN NO EVENT WILL Tourette Association of America BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, REMOTE, SPECULATIVE, PUNITIVE OR CONSEQUENTIAL DAMAGES.
ii. IN NO CASE SHALL Tourette Association of America’S LIABILITY EXCEED THE AMOUNT THAT YOU PAID TO US DURING THE TWELVE (12) MONTHS PRIOR TO THE TIME YOUR CAUSE OF ACTION AROSE.
iii. IMPORTANT INFORMATION RELATING TO WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY: BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, OR OTHER TYPES OF DAMAGES, IN SUCH STATES OR JURISDICTIONS, YOU MAY HAVE DIFFERENT OR ADDITIONAL RIGHTS ACCORDING TO THE APPLICABLE LAWS OF COUNTRY FROM WHICH YOU VALIDLY ACQUIRED AND USE THE PRODUCT AND IN WHICH CASE THE LIABILITY OF Tourette Association of America AND ITS AFFILIATES SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
iv. Member States of the European Union: subject to Section 5, Tourette Association of America shall be liable in accordance with statutory law in cases of its (a) intentional misconduct; (b) gross negligence; (c) breach of applicable Product Liability Acts. Without limiting the foregoing, Tourette Association of America may only be liable for modest levels of negligence in cases of a breach of a “material” contractual obligation under the Agreement, the breach of which would jeopardize the purpose of the Agreement. In such circumstances, Tourette Association of America’s liability will be limited to typical and foreseeable damages: in other circumstances Tourette Association of America shall not be liable for acts of modest negligence.
FOR INDIVIDUALS VALIDLY ACQUIRING AND USING THE PRODUCT FROM A MEMBER STATE OF THE EUROPEAN UNION NOTHING SHALL EXCLUDE Tourette Association of America’S LIABILITY FOR DEATH OR PERSONAL INJURY AS A RESULT OF ITS NEGLIGENCE.
You agree to indemnify, defend and hold harmless Tourette Association of America and its affiliates, and their respective officers, directors, owners, agents, employees, contractors, information providers and licensors (“Indemnified Party”, and collectively the “Indemnified Parties”) from and against any claims, liability, losses, costs and expenses (including attorneys’ fees) incurred by an Indemnified Party in connection with (i) any breach by you of the Agreement, and/or (ii) your posting or uploading any UGC.
Tourette Association of America reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Tourette Association of America’s defense of such claim.
18. RISK OF LOSS
You bear all risk of loss for accessing or completing the download of any Product and for any loss of any Product that you have accessed or downloaded, including any loss due to a file corruption or Device crash.
Any Product may be available for limited periods of time, and/or subject to other access restrictions (including for example, possession of other specific Product(s) for access or use). Products may become unavailable due to potential content provider licensing restrictions or other reasons; Tourette Association of America will not be liable to you if any Product is or becomes unavailable for download or access, for any reason, to the fullest extent permitted by applicable law.
Except as otherwise set forth herein, Tourette Association of America does not guarantee that any particular Product or Service Provided Content will be available at all times or at any given time or that Tourette Association of America will continue to offer the Product or Service Provided Content for any particular length of time. Tourette Association of America may change and update the Product or Service Provided Content without notice to you. Tourette Association of America makes no warranty or representation regarding the availability of online Product features and reserves the right to modify or discontinue online Product features in its discretion without notice, including for example, ceasing an online service for economic reasons due to a limited number of users continuing to make use of the online service over time.
In addition, Products that may be accessed from, displayed on or linked to from a Device are not available in all languages or in all countries. To the fullest extent permitted by applicable law (i) Tourette Association of America, and its licensors, reserve the right to change, suspend, remove, or disable access to any Product at any time without notice, and (ii) Tourette Association of America will not be liable for the removal of or disabling of access to any Product.
All title, ownership, and intellectual property rights in and to the Product (including, but not limited to, any titles, trademarks, service marks, and trade names, computer code, themes, objects, characters, character names, stories, dialog, catch phrases, locations, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, and any related documentation) are owned by Tourette Association of America and/or Tourette Association of America’s licensor(s). The Product is licensed, not sold, for your use. Your license confers no title or ownership in this Product and should not be construed as a sale of any rights in the Product.
YOU ACKNOWLEDGE AND AGREE THAT, OTHER THAN LICENSE GRANTED TO YOU BY THIS AGREEMENT, YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN ANY PRODUCT OR SERVICE PROVIDED CONTENT (INCLUDING WITHOUT LIMITATION ANY VIRTUAL GOODS), AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ALL RIGHTS IN AND TO SUCH PRODUCTS AND SERVICE PROVIDED CONTENT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF Tourette Association of America AND ITS LICENSORS.
You agree that all Products and Third Party Materials contain proprietary content, information and material that are protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any way whatsoever except for permitted use. No portion of the Products or Third Party Materials may be reproduced in any form or by any means other than as permitted under applicable license.
21. CHANGES TO THE AGREEMENT
Except for Section 4 (Binding Arbitration and Class Action Waiver), Tourette Association of America reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement or delete any of the terms and conditions of this Agreement at any time, effective with or without prior notice, and by any means, including without limitation by posting notification on any Product website, by email, through a patch process, pop-up screen or in-Product notice. Your continued use of the Product following any revision to this Agreement constitutes your acceptance of any such changes. Additionally, you may be asked to affirmatively accept updates to this Agreement from time to time. Note that if you do not accept affirmatively indicate your acceptance when requested, you may not be able to continue to use the Product or Service Provided Content. In relation to Products and Service Provided Content you have paid for, if you do not wish to accept a change to the Agreement, please stop using the Product or Service Provided Content and contact Tourette Association of America for refund options.
If you access content protected with Digital Rights Management (DRM), the software may automatically request media usage rights from a rights server online and download and install DRM updates so that you can play the content.
If any provision of this Agreement shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
C. Assignment and Transfer
We may assign this Agreement, in whole or in part, at any time without notice to you. You may not assign this agreement or transfer any rights to use the services.
You consent to Tourette Association of America providing you notifications about the Product or information the law requires us to provide via email to any address that you specified if you were required to register for the Product. Notices emailed to you will be deemed given and received when the email is sent. If you don’t consent to receive notices electronically, you must stop using the Product. For Products that do not require you to register or provide an email address, notices and other information may be made available in updates to this Agreement.
E. Force Majeure
Tourette Association of America shall not be liable for any delay or failure to perform resulting from causes outside Tourette Association of America ‘s reasonable control, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Tourette Association of America’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.
F. Equitable Remedies
In the event that you breach this Agreement, you hereby agree that Tourette Association of America would be irreparably damaged if this Agreement were not specifically enforced, and therefore you agree that Tourette Association of America shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as Tourette Association of America may otherwise have available to it under applicable laws.
G. Export and Commercial Items
You may not use or otherwise export or re-export the Product except as authorized by United States law and, if applicable, the laws of the jurisdiction in which the Product was obtained. In particular, but without limitation, the Product may not be exported, re-exported, or downloaded into (or transferred to a resident of) (a) North Korea, Iran, Syria, Sudan, any U.S. embargoed countries or any country against which the U.S. Government maintains comprehensive economic sanctions, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons or the U.S.
Department of Commerce Denied Person’s List or Entity List. By using the Product, you represent and warrant that you are not located in, under the control of, or a resident of any such country, or on any such list. You also agree that you will not use these Products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
The Product and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
H. Entire Agreement
This Agreement constitutes the entire agreement and understanding between you and Tourette Association of America, and supersedes any prior or contemporaneous agreements or understandings, whether written or oral, relating to the matters contained herein.